By Atty. Crispin Caday Lozano
When a person applies for a temporary visa to the United States, a person must actually have an intention to remain in the United States on a temporary basis and be limited by the rules of that visa. Similarly, when a person enters the United States on a particular temporary visa (or visa waiver), they must again represent that they truly only intend to remain in the United States on a temporary basis and will abide by the rules of the visa. Intending anything else is a material misrepresentation to Immigration Officers.
Beforehand, two of the main agencies that handle immigration matters – the Department of State & the Department of Homeland Security – have been in agreement on how to determine a person’s actual intent. The Department of State (DOS) is the agency that manages and controls the U.S. Embassies and Consulates abroad. They have their own rules and guidance as to how to proceed with immigration applications, just as the Department of Homeland Security (DHS) does for its own offices within the United States.
Without notice or warning, this decades old policy suddenly changed on September 1, 2017. The DOS just indicated that they have changed their interpretation of a misrepresentation as it relates to persons inside the United States. They have rejected the concept of a 30/60 day rule and have now instituted a flat 90 day rule.
The new 90-day rule now states that any “conduct inconsistent” with the status granted within 90 days of entry will result in an assumption that there was a willful misrepresentation when the person applied for a visa or entry to the United States. DOS officers are instructed that, if they find that someone in the United States has applied for permanent residence (green card) or otherwise committed some act inconsistent with their visa’s intent, they must bring this attention to the DOS for potential revocation of their visa.
How will the change in policy be implemented?
The new 90-day rule refers to any activity inconsistent with their status. This may include working without authorization, enrolling in courses without authorization (for example, a person on a visitor visa), marrying a U.S. Citizen/Permanent Resident and taking up residence with them, even potentially overstaying their visa, or doing anything else that would require or change of status.
If actions are taken within 90 days of the person’s entry that are inconsistent with their visa, it is up to the applicant to prove that they truly intended to follow the rules of their visa when they entered the United States or applied for their visa. Consular officers are given the directive to allow the person an opportunity to respond and prove otherwise.
If the activities occur outside of the new 90-day rule, there is no assumption. However, if it becomes clear that the intent was still invalid when entering the United States, then the Consular officer may still seek to revoke the visa.